ROCKAWAY SHOPRITE v. Linden
37 A.3d 1143
N.J. Super. Ct. App. Div.2011Background
- Plaintiff challenged public notices for Ordinances 52-71 and 53-10 rezoning the former GM site in Linden.
- Notice publication did not identify the new zones or describe substantive changes as required by N.J.S.A. 40:49-2.1.
- Ordinance 52-71 created Planned Commercial Development (PCD) and R-4 districts; Ordinance 53-10 made technical revisions.
- Notice publication occurred December 2008 and January 2009, with mailed notices to nearby property owners.
- Law Division dismissed suit; Appellate Division reversed, finding notices deficient and ordinances invalid.
- Court addressed whether Ordinance 52-71 could be sustained as conventional zoning despite labeling as PCD; substantive merits discussed for guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether published notice met 40:49-2.1 for new zoning changes | Cotler not invoked; notices failed to describe new zones | Notice identified property by block/lot and common name; sufficient | Not sufficient; notices deficient and jurisdictional |
| Whether mailed notice cured publication deficiencies | Mailed notices added no essential information | Mailed notices comply with statute | Remedy ineffective; defects remained |
| Waiver of defective notice by attendance at hearing | Attendance does not validate improper notice | Waiver by appearance may cure defects | Waiver not permitted; notice defective and ordinances invalid |
| Whether Ordinance 52-71 valid as conventional zoning despite PCD label | Ordinance violates MLUL PCD requirements | Ordinance complies with conventional zoning standards | Valid as conventional zoning; does not require PCD complete compliance |
Key Cases Cited
- Wolf v. Mayor & Borough Council of Shrewsbury, 182 N.J. Super. 289 (App.Div. 1981) (notice must brief summary; Master Plan/MLUL references insufficient)
- Cotler v. Township of Pilesgrove, 393 N.J. Super. 377 (App.Div. 2007) (notice must identify subject property and inform of substantive changes)
- Perlmart of Lacey, Inc. v. Lacey Township Planning Bd., 295 N.J. Super. 234 (App.Div. 1996) (notice must identify nature of development and use; not exhaustive)
- Pond Run Watershed Association v. Township of Hamilton Zoning Bd., 397 N.J. Super. 335 (App.Div. 2008) (notice must describe proposed use; generic references inadequate)
- Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193 (App.Div. 2011) (public notice must accurately describe proposed use)
- Township of Stafford v. Stafford Twp. Zoning Bd., 154 N.J. 62 (1998) (notice jurisdictional; failure to comply defeats action)
- Mulligan v. City of New Brunswick, 83 N.J. Super. 185 (Law Div. 1964) (strict compliance with notice procedures)